Injunction: Procedural Perspective

This article has been contributed byKaran Choudhary, BLS,LL.B, Pravin Gandhi college of law, Mithibai College Campus.

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Injunction – Introduction

The law of injunction in our country is having its origin in the Equity Jurisprudence inherited from England who borrowed it from Roman law. It is basic principle of law that if there is a right there should be a remedy. An injunction is a Judicial Remedy prohibiting persons from doing a specified act or commanding them to undo some wrong or injury and may be either temporary or permanent or mandatory.

Relief of injunction cannot be claimed as of right. It is discretionary, equitable relief. The relief of injunction must be granted where it is absolutely necessary. It may be granted where it would help in preservation of peace and public order. Where there is possibility of breach of peace of public order, the Court ought to proceed with caution. An injunction is a remedy against an individual and should be issued only in respect of acts done by him against whom it is sought to be enforced.

An Injunction is a judicial process whereby a party is required to do, or to refrain from doing, any particular act. It is a remedy in the form of an order of the court addressed to a particular person that either prohibits him from doing a continuing to do a particular act or orders him to carry out a certain act. Injunction acts in person am. It does not run with the property. For example A, the plaintiff, secures an injunction against against B for bidding him to erect a wall. A sells the property to C. The sale does carry the injunction with the property.

An injunction may be issued for and against individuals, public bodies or even the state. Disobedience of an injunction is punishable as contempt of court.

OBJECT

The primary purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated. The court in the exercise of sound judicial discretion can grant or refuse to grant interim relief.

INJUNCTION- DEFINITION

An injunction is defined in Halsbury’s Laws as: “A judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing.” Oxford dictionary meaning of word Injunction is “a Judicial warning or a Judicial order restraining a person from an action or compelling a person to carry out a certain act.”

Difference between the remedies of specific performance and injunction

Specific performance is decreed to compel the performance of an active duty, while injunction is decreed to prevent the violation of a negative duty. Normally, the former deals with contracts, while the latter with torts and other subjects of equitable nature. If a contract is positive in its nature, it calls for the relief of specific performance, on the other hand, if it is negative in its nature, it calls for relief of injunction.

The principle governing the award of injunction as a mode of enforcement of contracts is similar to that of specific performance. This is clearly borne out by Section 38(2) of the Act. Thus, the enforcement of a contract is governed by both specific relief and injunction. “The jurisdiction of equity to grant such injunction is substantially coexistent with its jurisdiction to compel a specific performance”. But still their fields of operation are separate from each other. While a promise to do is enforced by specific performance, a promise to forbear is enforced by injunction. Section 41(e) further provides that contract which will not be affirmatively enforced by a decree of specific performance, will not be negatively enforced by issuing an injunction. The only exception to this rule is found in Section 42.

Part III Preventive Relief Chapter VII

Sec36: Preventive relief how granted – Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.

TEMPORARY INJUNCTION

Sec37. (1) Temporary injunctions are such as are to continue until a specific time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.

(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from, the assertion of a right, or from the commission of an act, which could be contrary to the rights of the plaintiff.

HOW TEMPORARY INJUNCTION IS GRANTED

Indian courts regulate the granting of a temporary injunction in accordance with the procedure laid down under Sections 94, 95 and Order XXXIX of the Civil Procedure Code,

whereas, temporary and perpetual injunctions are prescribed by Sections 36 to 42 of the Specific Relief Act.

when the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in suit, the Court may grant a temporary injunction to restrain such an act or make other order for the purpose of preventing the dispossession of the plaintiff or for the purpose of preventing the causing of injury to the plaintiff in relation to any property in dispute.

If the defendants are creating third party interest/rights as he is trying to dispose of part of the property, the plaintiff can claim the injunction. Temporary injunction is used to provide for immediate relief to the plaintiff.

Court can grant injunction but it has evolved principles which will be taken in to consideration while granting a temporary injunction. Injunction is the solely based on the discretion of the court.

Section 94 (c) and (e) and rule 2A of order 39 of Code of Civil Procedure

Section 94(c),(e) contain provisions under which the Court may in order to prevent the ends of justice from being defeated, grant a temporary injunction{section 94(c)} or make such other interlocutory order as may appear to the Court to be just and convenient.{section94(e). (SECTION 94(a ,(b),(c) are not relevant with regard to injunction).

Section 95 of Civil Procedure Code further provides that where in any suit a temporary injunction is granted and it appears to the Court that there were no sufficient grounds, or the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same, the Court may on application of the defendant award reasonable compensation which may be to the extent of the pecuniary Jurisdiction of the

Court trying the suit, Following are the principles

Whether the plaintiff has a prima facie case

Whether the balance of convenience is in favour of plaintiff

Whether the plaintiff would suffer irreparable injury if his prayer for temporary injunction is disallowed.

What is Balance of convenience?

The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused, and compare it with that which is likely to be caused to the other side if the injunction is granted.

At the stage of deciding the application for temporary injunction, the Court is not required to go into the merits of the case in detail.

Generally, before granting the injunction, the court must be satisfied about the following aspects :

One who seeks equity must come with clean hands.

One who seeks equity must do equity.

Whenever there is right there is remedy.

The power to grant a temporary injunction is at the discretion of the court. This discretion, however, should be exercised reasonably, judiciously and on sound legal principles. Injunction should not be lightly granted as it adversely affects the other side. The grant of injunction is in the nature of equitable relief, and the court has undoubtedly power to impose such terms and conditions as it thinks fit. Such conditions, however, must be reasonable so as not to make it impossible for the party to comply with the same and thereby virtually denying the relief which he would otherwise be ordinarily entitled to.

As per Rule3 of Order XXXIX of the C.P.C

The power to grant an eparte interim injunction in exceptional circumstances based on sound judicial discretion to protect the plaintiff from apprehended injury may be granted.

As per Rule 3A of Order XXXIX of Civil Procedure Code where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within 30 days from the date on which the injunction was granted and where it is unable so to do, it shall record its reasons for such inability.

There are some other factors which must be considered by court while granting injunction. The relief of injunction may be refused on the ground of delay, laches or acquiescence or whether the applicant has not come with the clean hands or has suppressed material facts, or where monetary compensation is adequate relief.

As per amended Sec.9-A (2) of the C.P.C. The Court is empowered to grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction.

Power of a court to issue temporary injunction U/S. 151

There was a conflict of Judicial opinion on the question whether the Court could issue a temporary injunction U/S.151 of Civil Procedure Code when the case did not fall within the term of Order XXXIX Rule 1 and 2 of Civil Procedure Code. However now that point is concluded by the Hon’ble Apex Court in the case of Manmohanlal Vs. Seth Hiralal reported in A.I.R.1962 Supreme Court 527 by observing that the Court has powers U/s.151 of Civil Procedure Code to issue an injunction in cases not falling within Order XXXIX Rule 1 and 2; however that discretion should be exercised judiciously. For the purpose of implementation of an injunction order Police protection can be ordered U/s.151 of Civil Procedure Code. However the Court shall not order for Police protection on the basis of an ad-interim ex-parte order and only final order under Order XXXIX Rule 1,2 can be enforced with police assistance. An order granting Police aid without giving a chance to the defendant to submit his objections is not proper.

PERPETUAL INJUNCTION

Section 38. Perpetual injunction when granted

(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely,-

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) where the invasion is such that compensation in money would not afford adequate relief;

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings..

Section 37(2) of Specific Relief Act says that a perpetual injunction can only be granted by the decree made at the hearing and upon merits of the suit. The defendant is thereby perpetually enjoined from the assertion of a right from the commission of an act, which would be contrary to the rights of the plaintiff. Section 38 of the Specific Relief Act further provides a circumstance where a perpetual injunction may be granted in favour of the plaintiff to prevent the breach of obligation existing in his favour. In contractual matters when such obligation arises, the Court has to seek guidance by the rules and provisions contained in Chapter II of the Specific Relief Act dealing with the specific performance of contracts.

Sub-section (3) of Section 38 of Specific Relief Act in clauses (a), (b), (c) and (d) further illustrates the circumstances wherein perpetual injunction may be granted by the Court. That means in view of the section 38 (3) when the defendant invades or threatens to invade the plaintiff’s right, or enjoyment of property the Court may grant a perpetual injunction

A injunction is not granted in a contract where there’s an obligation as above mentioned but if the contract is not capable of specific performance the injunction will not be granted.

Injunction to perform negative agreement

Section 42 provides that notwithstanding anything contained in clause (e) of Section 41(to prevent the breach of a contract the performance of which would not be specifically enforced.), where a contract comprises an affirmative agreement to do a certain act, coupled with negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement, provided that the plaintiff has not failed to perform the contract so far as it is binding on him.

This Section is based upon an English case viz., Lumley v. Wagner (21) L.J. CH. 898. In this case Miss W, a singer agreed to sing at L’s theatre for a certain period and not to sing anywhere else during that period. Afterwards, she entered into a contract to sing at another theatre and refused to perform her contract with L. The Court refused to enforce her positive agreement to sing at L’s theatre (by specific performance since it is based on personal volition) but granted an injunction restraining her from singing at any other theatre thereby preventing breach of the negative part of the agreement though the positive part of it, being a contract for the personal service, could not be specifically enforced.

A negative stipulation may be express or implied. An express negative stipulation in one where the negative stipulation is put expressly. The Section does not say that every affirmative contract includes by necessary implication a negative agreement to refrain from doing certain things. It is therefore a question of interpretation in each case to find whether a particular contract can be said to have a negative stipulation, express or implied, contained in it, e.g., the mere use of word “exclusively” does not imply a negative stipulation to refrain from service of other people. The provisions of this Section are based on the equitable principle that “he who seeks equity must do equity”.

Essentials of applicability of this section is

Contract must contain two agreements that is (i) an affirmative agreement to do a certain act, and (ii) a negative agreement(express or implied ) not to do a certain act and negative part must be capable of being separated from the rest of the contract and

The applicant must have fully carried out his part of the contract.

As per Sec.38 of Specific Relief Act – the plaintiff must establish apprehended breach of an obligation existing in his favour, whether expressly or by implication.

Interim injunction when perpetual injunction is prayed for

If the plaintiff has not prayed for the perpetual injunction in a decree and has prayed for and interim injunction or a temporary injunction the court will reject the prayer for the interim injunction.

Refusal of Injunction :- Section 41 of the Specific Relief Act, 1963, provides various contingencies in sub section (a) to (j) in which the injunction cannot be granted.

Section 41 of the Act deals with when injunction cannot be granted, (a) to restrain any person from prosecuting a judicial proceedings unless such a restrain is necessary to prevent

a multiplicity of the proceedings, (b) to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought,(c) to restrain any person from applying to any legislative body, (d) to restrain any person from instituting or prosecuting any proceedings in criminal matter, (e) to prevent the breach of a

contract the performance of which would not be specifically enforced,(f) to prevent on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance, (g) to prevent a continuing breach in which the plaintiff has acquiesced, (h) when equally efficacious relief can certainly be obtained by any other mutual mode of proceedings except in case of breach of trust, (i) when the conduct of the plaintiff or his agent has been such as to

dis-entitle him to the assistant to the Court, (j) when the plaintiff has not personal interest in the matter.

Under normal parlance, while granting perpetual injunction, the Court has to see the nature of right being invaded, whether the compensation would be an inadequate remedy for its redress, there is no standard for ascertaining the actual damage caused by such invasion, there shall not have efficacious remedy to the plaintiff in respect of such invasion, the plaintiff would not have been guilty of delay and latches and his conduct is not unfair. Aspect of comparative hardship also assumes importance.

MANDATORY INJUNCTION

Section 39 dealing with mandatory injunctions states that when to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. For example, A builds a house with eaves projecting over B’s land, B may sue for an injunction to pull down so much of the eaves as so projecting over his land. According to Section 40, the plaintiff in a suit for perpetual injunction under Section 38 or mandatory injunction under Section 39, may claim damages either in addition to, or in substitution for such injunction and the Court, may, if it thinks fit, award such damages.

Mandatory injunction would not be granted:

Where compensation in terms of money would be enough

Where the balance of convenience is in favour of the defendant

Where the plaintiff is guilty of allowing the obstructions to be completed before coming to court

Where it is desired to create a new state of thing. It was held in case of Allahabad high court in sheo nath v. Ali. That where the defendant constructed a structure which interfered with the privacy of the plaintiff house, he could not be ordered to erect a wall on the roof.

Sec 40. Damages in lieu of, or in addition to, injunction

(1) The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.

(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:

PROVIDEDthat where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.

(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.

Section provides that the plaintiff can claim damages in addition to, or in substitution for such injunction claimed. But where a suit, in which damages were not claimed, is dismisses, a subsequent separate suit for damages would not lie. The court can award damages in lieu of injunction where the injury is threatened though not yet causes. The house of lords in Leeds industrial co-op. Society ltd v Black, laid down that damages could be allowed to a person whose tenement is sure to suffer loss his right to light when a planned building structure comes up.

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